MONTGOMERY, Ala. -- Toforest Johnson, 49, has spent half his life on Alabama’s death row for the murder of a sheriff's deputy, a killing he says he did not commit.
Johnson’s attorneys asked the Alabama Supreme Court on Friday to “right a grievous wrong” and grant him a new trial. The filing is the latest effort in a case that has seen former judges, prosecutors and the local district attorney join in calls to reexamine the 1998 conviction and death sentence.
Johnson’s attorneys are asking the justices to review a lower court decision denying the new trial request. They argued that the conviction rested on the testimony of a single witness who was paid a reward and that her testimony “was at odds with the physical evidence and directly contradicted by the state’s theory of the case in other proceedings.”
“The first thing to know is that he is innocent ... Former prosecutors have said it themselves, that there needs to be more eyes on this case and he deserves a new trial,” Johnson’s daughter, Shanaye Poole, said in a telephone interview.
Johnson was convicted and sentenced to death for the killing of Jefferson County Deputy Sheriff William Hardy. Hardy was shot twice in the head while working off-duty security at a hotel in 1995. The conviction came after Johnson's first trial ended with a hung jury. A co-defendant in the case was acquitted.
Poole was just 5 when her father was sentenced to death. She sat on someone’s shoulders to peer through the window on the courtroom door to see her father. “That was the last time I saw my Dad in person before his freedom was taken from him,” she said.
Former Alabama Attorney General Bill Baxley, former Chief Justice Drayton Nabers, and several former judges and prosecutors submitted briefs to the circuit court, or wrote editorials, supporting a new trial for Johnson. Danny Carr, the district attorney in the county where Johnson was convicted, also called for a new trial.
Baxley, who worked decades ago to have the death penalty reinstated in Alabama, said he is usually skeptical of such innocence claims filed by what he called “do-gooder” lawyers. But he said he was astonished at the case.
“I couldn’t believe what I was reading. I was just dumfounded that, in Alabama, a case as weak as that would have gotten to the jury, much less a death sentence,” Baxley said in a telephone interview with The Associated Press.
The U.S. Supreme Court in 2017 ordered a new hearing to take place on Johnson’s claim of suppressed evidence.
The key prosecution witness at the 1998 trial testified that, while eavesdropping on a phone call, she heard a man she believed was Johnson admitting to the crime. She was paid $5,000 in 2001 for her testimony, and Johnson’s lawyers argue that the state withheld evidence of monetary motivation for the testimony.
A judge denied the new trial request in 2020, and the Alabama Court of Criminal Appeals upheld that decision in May, ruling that Johnson’s attorneys had not established that the witness “came forward with information in hope of the reward or that the state ever knew of such a hope before Johnson’s trial.”
The Alabama attorney general’s office has opposed the request for a new trial. Attorneys for the state argued that the witness testified that she was unaware that a reward had been offered when she contacted law enforcement.
The recent court proceedings have been narrowly focused on the issue of the reward, but Baxley said the case merits a fuller look.
“Every breath this guy draws on death row is an indictment to the people of Alabama that I love so much,” Baxley said. “If some proper court will look at it, they are going to come to the same conclusion.”
From Alabama Chief Justice Drayton Nabers Jr., wrote in an opinion piece this spring that, "there’s now substantial evidence that Mr. Johnson is innocent.” Carr wrote in 2020 that he took no position on Johnson’s innocence or guilt but said there are concerns about his trial. He wrote that those include a key witness being paid a reward, a fact not mentioned at trial, as well as alibi witnesses who placed Johnson in another part of town at the time of the shooting.
“A prosecutor’s duty is not merely to secure convictions, but to seek justice,” the brief stated. “It is the district attorney’s position that in the interest of justice, Mr. Johnson, who has spent more than two decades on death row, be granted a new trial.”